10-11 C-It's the Law

www.naesp.orgPrincipal

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November/December 2004

IT’S THE LAW PERRY A. ZIRKEL

hile adherents to many religions can be identified by

distinctive clothing or accessories, the wearing of such

garb by teachers is not necessarily related to evangelism in

the classroom.

The following case and the accompanying

question-and-answer discussion illustrate the problem of the

principal caught between the rock of

First Amendment establishment clause

concerns, often in the form of laws

prohibiting school employees from

wearing religion-related apparel or

jewelry, and the hard place of counter-

vailing individual freedoms, including

free exercise of religion, freedom of

speech, and the Title VII protection

against religious discrimination.

The Case

During the 2002–03 school year,

Brenda Nichol was a paraprofessional in a special education

class at Penns Manor Area Elementary School in western

Pennsylvania. For the previous five years, she had performed

similar duties at the middle school in the same district.

Sometime before the end of the 1998–1999 school year, she

and all district personnel had received a notice explaining

that the Pennsylvania Public School Code did not allow

wearing religious jewelry such as “crosses or Stars of David.”

Yet Nichol continued to wear a cross to school approxi-

mately three days per week without tucking it inside her

blouse and without any reaction from her co-workers or

students.

However, in March of 2003 another staff member

informed her special education supervisor that Nichol

was wearing a cross at work. The next day, the supervisor

reminded Nichol and other staff members of the state law

and asked them either not to wear crosses or to keep them

concealed by tucking them in. Nichol was not wearing her

cross that day, but early the next month she wore it openly

again and the special education teacher in her classroom

reminded her of the supervisor’s request.

When the supervisor followed up a week or so later with

another reminder, she explained that his request was like

asking her to remove or hide her wedding ring, and that

complying would be to shame her “Lord and Savior Jesus.”

The next day, he gave her a copy of the employee hand-

book, pointing to the district policy that “employees shall

not display any religious emblems,

dress, or insignia … includ[ing] jew-

elry such as crosses or Stars of David”

and which lists a one-year suspension

as the consequence for the first viola-

tion and a permanent suspension for

the second. He warned her that if she

wore the cross visibly the next day he

would have to follow the policy and

issue the suspension. She did so, and

the district issued the suspension.

Nichol filed suit in federal court, claiming that the suspen-

sion violated her First Amendment rights of free exercise of

religion and freedom of speech. The district’s defenses were

that the state statute (which applies to all professional certifi-

cated personnel) required, on penalty

of criminal prosecution, enforcement

against any known violations; and that

the district policy (which applies to all

employees) is based on not only the

statute but also the First Amendment’s

establishment clause for religious

neutrality.

Questions and Answers

Who do you think prevailed in this

litigation?

The federal district court issued a preliminary injunction

in favor of the plaintiff-paraprofessional.

First, the court

ruled that the state statute did not apply to Nichol because

she was a paraprofessional, not a teacher or other certifi-

cated professional. Second, although the district policy

applied to Nichol, the court concluded that she was likely

to succeed on her First Amendment claims.

The court ruled that by drawing a line between jewelry

and other apparel that convey a religious message and those

that convey a secular message, the policy constituted view-

point discrimination contrary to the First Amendment’s

freedom of religion and expression. The court suggested

that “permitting small crosses or similar jewelry with reli-

gious content or viewpoint at school, especially in the con-

text that jewelry with secular message content is worn and

permitted” would not violate the First Amendment’s estab-

lishment clause. In response to the district’s argument that

elementary school students are particularly impressionable,

the court pointed to the Supreme Court’s 2001 religious-

access decision

that treated this concern as exaggerated

and one-sided.

Would the court’s decision have been different if Nichol had

been a teacher in Pennsylvania or another state with a strong

statute, had worn conspicuous religious attire, such as that

associated with devout Sikhs or Muslims, and relied solely on

First Amendment freedom of religion? Would the outcome be

Employees

Wearing

Religious Attire

“Employee wearing of

religious clothing or jewelry

is a perplexing issue that

merits careful consideration

in collaboration with legal

counsel...”

www.naesp.org Principal

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November/December 2004

the same if she had relied on Title VII of

the Civil Rights Act?

Yes, with limitations in relation to

both questions.

In a 1986 decision in Oregon, which

has a teacher garb statute that carries

the ultimate penalty of certification

revocation, the state’s highest court

rejected the freedom of religion claims

of a middle school teacher who wore

the distinctive dress of her Sikh faith

while teaching.

Skirting an analysis of

the First Amendment’s establishment

clause, the court viewed the mainte-

nance of religious neutrality in the

public schools as a compelling interest

that overrode the teacher’s constitu-

tional freedom of religion.

One of the significant factors in the

court’s decision was its perception of

the children with whom the teacher

had regular contact, depending on

their “age, background, and sophistica-

tion.” In dicta, the court distinguished

as permissible the wearing of common

symbols of religious heritage, such as a

“small cross or Star of David”; wearing

garments that unintentionally imply

membership in a religious group; or

dressing in distinctively religious garb

to assume a role in a classroom histori-

cal exercise or theatrical performance.

As for Title VII, the Third Circuit

Court of Appeals in a 1990 decision

agreed with the district’s statutory

defense that it would be an undue

hardship to require a school board to

violate “an apparently valid criminal

statute, thereby exposing its adminis-

trators to criminal prosecution and the

possible consequences thereof.”

The

court cited the Oregon case as factually

indistinguishable and pointed to the

Supreme Court’s dismissal of the ap-

peal, which included a Title VII issue,

as supporting its position. However,

the Third Circuit artfully ducked estab-

lishment clause analysis, and there was

no First Amendment free exercise or

expression claim in the case.

If a district in a state with a strong

statute refused to hire a teacher

based on her ambiguous head covering

and her explanation that she did so as

an attempted accommodation, without

strict observance, of her Muslim faith,

would her Title VII outcome have been

different?

Again, the answer is a qualified yes.

In a 1991 decision, a federal district

court in Pennsylvania upheld the Title

VII claim of a teacher applicant, con-

cluding that her ambiguous head cov-

ering was not reasonably perceived as

religious garb and that the district had

not explored reasonable accommoda-

tions, such as having her agree not to

tell children that she covered her head

for religious reasons.

This decision is

limited to its relatively narrow factual

and Title VII confines.

If the state did not have a law regarding

teachers’ religious attire and a school

employee wore an ambiguous head

covering, such as a red beret, in viola-

tion of a dress code not specifically tar-

geted to religious garb, would the Title

VII claim likely have a successful judicial

outcome?

No, not if the administrators did

not have reason to know that the head

covering was religious. In a Mississippi

case, the federal district court rejected

a teacher aide’s Title VII claim

because, based on her inconsistent

actions and vague statements, the

administrators were not aware that

the practice was part of her religious

beliefs before they discharged her for

insubordination.

Conclusion

Employee wearing of religious

clothing or jewelry is a perplexing issue

that merits careful consideration in

collaboration with legal counsel rather

than either knee-jerk or ostrich-like

administrative reaction. First, deter-

mine whether your state has a perti-

nent statute and, if so, its strength

and scope. Second, take a preventive

approach to potential problems by

developing or revising pertinent school

policy, making sure that it is reasonably

clear and not overly broad; that it pro-

vides for progressive and proportional

discipline, with appropriate procedural

safeguards; and that it extends to secu-

lar forms of employee garb based on

such justifiable concerns as safety and

effective instruction.

In applying such prohibitions, keep

in mind:

■ Whether the garb is conspicuous

or ambiguous in terms of religion in

the eyes of the reasonable observer;

■ The extent of contact that the

employee has with children and, to a

lesser extent, their age and his or her

level of authority;

■ Whether the problem is resolvable

via less restrictive alternatives or

reasonable accommodations; and

■ Whether the policy is adminis-

tered with reasonable consistency.

Finally, in such a fluid area of law,

the principal’s careful consultation,

via central office, with district legal

counsel is especially advisable.

Notes

1. See, e.g., Perry Zirkel, “Evangelism in the

Classroom,” Principal, November 1998,

62–63. For a more recent case, see

Marchi v. Bd. of Coop. Educ. Serv., 173

F.3d 469 (2d Cir. 1999) (upheld consti-

tutionality of directive that special

education teacher refrain from using

religious references in his instruction).

2. Although her employer was an interme-

diate unit, we identify the school district

as her employer for the sake of simplic-

ity and coherence, because the termi-

nology for and scope of intermediate

units vary from state to state.

3. Nichol v. Arin Intermediate Unit 28, 268 F.

Supp. 2d 536 (W.D. Pa. 2003).

4. Good News Club v. Milford Cent. Sch., 533

U.S. 98 (2001) (district’s denial of facili-

ties access to otherwise eligible organi-

zation based on its religious viewpoint

violates First Amendment expression).

5. Cooper v. Eugene Sch. Dist. No. 4J, 723 P.2d

298 (Or. 1986), appeal dismissed, 480 U.S.

942 (1987).

6. United States v. Bd. of Educ. for the Sch.

Dist. of Philadelphia, 911 F.2d 881 (3d Cir.

1990).

7. EEOC v. Reads, Inc., 759 F. Supp. 1150

(E.D. Pa. 1991).

8. McGlothin v. Jackson Mun. Separate Sch.

Dist., 829 F. Supp. 853 (S.D. Miss. 1992).

Perry A. Zirkel is University Professor of

Education and Law at Lehigh University

in Bethlehem, Pennsylvania.